Where Was Steinitz?

While Finance Minister Yuval Steinitz's fierce attack on the Supreme Court still reverberated around the country - after he accused it of "irresponsibility bordering on economic malfeasance" - in the court itself last Wednesday, it appeared to be just a distant echo.

The three-judge panel of President Dorit Beinisch and justices Ayala Procaccia and Neal Hendel were listening with great patience to the detailed and reasoned petition in front of them. The petitioners, the Israel Bar Association, the Israel Association for the Self-Employed and the Reserve Officers Forum, had asked the High Court of Justice to invalidate the section of the Economic Arrangements Law that levied National Insurance Institute payments on high wage earners, and would effectively lower their earnings by 10 to 15 percent.

The businesslike session opened with a surprising declaration, one that is not customary in a courtroom that inspires reverence and emanates a chilling propriety that can cool off even the most heated advocate. One of the plaintiffs' lawyers protested the finance minister's attack on the justices, and accused Steinitz of trying to intimidate them.

Beinisch, who has by now become accustomed to being in the middle of various legal storms, did not lose her composure. She gently deflected the lawyer who proffered his support, but staunchly declared: "We will not be intimidated, even when they try to do that to us."

For their part, the plaintiffs sought to convince the court to invalidate the law at hand. The justices reiterated their traditional reluctance to annul legislation passed by the Knesset or to support judicial intervention in socioeconomic policy. And it seemed to everyone present that the task undertaken by the plaintiffs, to nullify legislation involving the collection of social security taxes through the offices of the NII - was almost an impossible feat. The petitioners hurled heavy barrages of criticism at the unconstitutionality of the law, which they said was not passed for "the proper purpose" and in a hasty manner. But the court took refuge behind the broad discretion granted to the Knesset and cabinet, as if the issue did not even relate to it.

Indeed, the High Court stood aside like a passive referee, allowing the teams playing on the economic field, the Knesset and the cabinet ample space for maneuvering.

Tax expert Prof. Yitzhak Hadari, representing the bar association, along with attorneys Eyal Nun and Doron Levy, representing the other petitioners, conducted a fierce battle to prove at least theoretical damage to the constitutional rights involving property and equality. The court seemed to stand fast against their claims, in a way that was totally different from the judicial activism of which the finance minister accused it.

Do we set tax policy or determine its wisdom, the judges half-asked, half-stated. "Where are we in this story?" asked Beinisch. And Procaccia queried, "Where is there a foundation for intervention?" - as if she were asking the petitioners to leave the justices alone because they were unable to convince the court that the government's policy and the law were seriously, or perhaps even mortally, harming human rights.

There were only a few people in the courtroom, mostly lawyers and students brought by Prof. Menachem Hofnung, of the political science department of the Hebrew University of Jerusalem. They were amazed that this could be the same High Court that is so threatening to Steinitz, who was not present. And that was a shame.

Those in attendance in courtroom C could only be impressed by how high the hopes of the petitioners were for receiving justice from the High Court, and by how far the court was from trying to run the country or intervening in a case involving Knesset legislation.

This time the petitioners came in the name of the upper middle classes, who must now pay thousands of shekels more in NII payments after the ceilings were raised. In the past, the court was typically graced by people petitioning against cuts in old-age and guaranteed-income allowances.

But all of those groups together learned, or will learn, that the High Court not only does not represent "economic malfeasance": Sometimes it is even too hesitant to protect basic constitutional rights concerning individual property, in the face of the imposition of disproportionate and damaging taxes, or the right to a minimal level of sustenance.

The problem of a no-man's land immune to criticism - and not of economic malfeasance - is what really requires serious attention here.

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